“Broadcast flag” joins Confederate flag as political hot potato

The battle over intrusive copy protection of television programming is shaping up to be one of the hottest issues on the media agenda for the coming year. It’s reported that the FCC received more than 1,000 comments on the imposition of a “broadcast flag” to prevent digital home recording. About the only strong supporters of the measure are Hollywood studios, which want to prevent the copying of their premium content.

Among the key opponents of the “flag” proposal is the Electronic Frontier Foundation (EFF), a consumer advocacy group that urged the FCC to stop Hollywood from dominating technology, undermining fair use and stymieing innovation. The EFF told the FCC that the proposal would give Hollywood unwarranted control over the development of digital television (DTV) and related technologies to the detriment of creators and consumers of the technologies.

“A broadcast flag mandate is an ineffective solution to a non-existent problem,” explained EFF in its comments on the proposed rulemaking submitted to the FCC. “At the same time, any broadcast flag mandate will impose genuine and substantial costs on consumers and innovators. It would raise the cost of DTV devices while reducing the value that they represent to consumers. It would stifle innovation in DTV and general-purpose technologies. It would abridge the First Amendment freedoms of software authors. All of this, in the end, will impede, rather than encourage, the transition to DTV.”

The broadcast flag, a signal that would block recording of all DTV broadcasts, is designed to give Hollywood studio owners control over content and, as the EFF contends, “control over the design of general-purpose computers, over analog-to-digital converters, and over the Internet itself.”

The Consumer Electronics Association (CEA), while not outright opposing the use of a broadcast flag, argued that the concepts of legitimate home recording and piracy should not be confused in the debate. As lobbyists for the consumer electronics manufacturers, the CEA emphasized the importance of preserving normal consumer expectations under any digital copy protection regime.

The CEA cited the Supreme Court's 1984 Betamax case ruling that private, noncommercial home recording of copyrighted programs remains “vital and viable” in the digital age.

“Though not codified by statute, fair use is a judicial doctrine, and it is neither practical nor desirable to resort to court action to test its every application,” the CEA told the FCC.

Michael Petricone, the CEA’s vice president of technology policy, said “Interactive digital technology offers consumers endless benefits, but also presents the potential danger of content owners choosing by ‘remote control’ not only the copy status of content in consumers’ homes, but also the home interfaces that may be active at any time. Some encryption and marking schemes could even control the viewing resolution at which content may be enjoyed. This clearly exceeds the reasonable protections that may be necessary to guard against illegal use of copyrighted content for personal gain.”

The FCC on Tuesday passed a broadcast flag ruling that effectively gives the electronics industry 18 months to figure out how to make it work. In a unanimous vote with partial dissent from both Democrats, the commissioners ordered that all digital OTA receivers recognize the broadcast flag by July 1, 2005. In its order

The chairman of the Senate Commerce Committee intends to push a bill that would give the FCC authority to implement the broadcast flag. At a hearing Tuesday, Sen. Ted Stevens (R-Alaska) said, "We are going to push for a broadcast flag bill; at the very least, we'll give the FCC the authority to do it." Witnesses who